Elizabeth Richey — Direct/Cross/Redirect; Trial Scheduling and Jury-Instruction Issues
180 linesMS. CAPPLEMAN: Please introduce yourself and spell your name.
ELIZABETH RICHEY: My name is Elizabeth Richey. E-L-I-Z-A-B-E-T-H, R-I-C-H-E-Y.
MS. CAPPLEMAN: And do you go by Danny Beth as well?
ELIZABETH RICHEY: I do.
MS. CAPPLEMAN: All right. And how are you employed, Ms. Richey?
ELIZABETH RICHEY: I work for the Florida Department of Law Enforcement.
MS. CAPPLEMAN: How long have you worked for FDLE?
ELIZABETH RICHEY: I've worked for FDLE since 2007.
ELIZABETH RICHEY: I've been in the firearms section since 2009, and in my current position as a crime laboratory analyst since 2012.
MS. CAPPLEMAN: What are your duties as a crime lab analyst?
ELIZABETH RICHEY: My primary responsibilities are to compare fired components — so things like bullets, bullets, cartridge cases, and shot shells — and examine them and compare them to suspect firearms to see if they were fired from a specific firearm.
ELIZABETH RICHEY: If no firearm is available, then I will try to determine if the components were fired from the same firearm or different firearms.
MS. CAPPLEMAN: What training and education do you have to perform those types of analyses?
ELIZABETH RICHEY: Well, first, to be hired with FDLE, you have to have at least a bachelor's of science in some sort of laboratory science.
ELIZABETH RICHEY: I have a bachelor's of science in marine science with Jacksonville University.
ELIZABETH RICHEY: When I was promoted to my crime laboratory analyst position, I went through FDLE's 18-month training program.
ELIZABETH RICHEY: The first 12 months of that program is spent basically in book work, practical exercises, and examinations. And it covers the history and development of firearms, firearms identification, tool mark analysis, ammunition, serial number restoration, and it also included tours of firearms manufacturers as well as a gunpowder manufacturer.
ELIZABETH RICHEY: When the first phase of my training was done, the second phase was six months of supervised casework, where I worked actual cases under the direct supervision of a qualified analyst.
MS. CAPPLEMAN: All right. And have you been previously qualified as an expert in a court of law?
ELIZABETH RICHEY: Yes, I have.
MS. CAPPLEMAN: All right. What have you previously testified as an expert in?
ELIZABETH RICHEY: Firearms identification.
MS. CAPPLEMAN: All right. And how many times has that occurred?
ELIZABETH RICHEY: Approximately 55.
MS. CAPPLEMAN: Judge, at this time I tender Ms. Richey as an expert in firearms identification.
JUDGE HANKINSON: Any more to add?
MS. CAPPLEMAN: Ms. Richey, I want to ask you about some projectiles which were collected in reference to a case involving the death of Mr. Markel, which we've marked as State's Exhibits 167 and 166.
MS. CAPPLEMAN: Do you recognize these items?
ELIZABETH RICHEY: Yes, I do.
MS. CAPPLEMAN: How do you recognize them?
ELIZABETH RICHEY: When I receive evidence, I mark the outer packaging with the laboratory case number, agency exhibit number, and my initials, and those are present on these items.
MS. CAPPLEMAN: Are the items in the same or substantially the same condition as when you analyzed them?
ELIZABETH RICHEY: They appear to be.
MS. CAPPLEMAN: All right. What are the items?
ELIZABETH RICHEY: They are two fired bullets.
MS. CAPPLEMAN: Okay. And what type of analysis did you do?
ELIZABETH RICHEY: I compared them to see if they had been fired from the same firearm.
ELIZABETH RICHEY: When I receive bullets in a case with no gun, I will start with doing my general inventory.
ELIZABETH RICHEY: I will go through the evidence to make sure what I have is matching on our case tracking form. And then I will open it up, and I will examine the evidence for class characteristics.
ELIZABETH RICHEY: Class characteristics are the characteristics that are determined by the manufacturer prior to manufacturing.
ELIZABETH RICHEY: So when they go to manufacture a gun, they have to decide what caliber that gun is. They have to decide what kind of rifling it will have, how many grooves that rifling will have, how wide those lands and grooves will be. When a bullet is fired through a gun, it picks up the impressions of the rifling, so I can examine a bullet and determine what caliber class it may be from, and then I can use the numbers of lands and grooves and look at the two items to see if they should be compared to each other. If those class characteristics match up, then I will move to my comparison microscope. And what that is is two compound microscopes that sit side by side. There's an optical bridge with a set of eyepieces that allows me to look at two items at the same magnification at the same time. So I can examine those two bullets and look for individual characteristics, to see if the individual characteristics that come from firing the gun, that come from interacting with the inside of the barrel, match up with bullet one to bullet two.
ELIZABETH RICHEY: And then I will make my determination based on the level of individual characteristics that I see on my evidence.
MS. CAPPLEMAN: And did both projectiles in State's Exhibits 167 and 168 have rifling characteristics sufficient to conduct this comparison?
ELIZABETH RICHEY: Yes.
MS. CAPPLEMAN: All right. And are you able to tell us anything about the caliber of the bullets in State's Exhibits 167 and 168?
ELIZABETH RICHEY: The caliber class of the bullets would be 38, and what that means is that the caliber class is like a family of calibers. It's kind of like saying a pickup truck and you have a lot of different pickup trucks.
ELIZABETH RICHEY: The caliber can have different dimensions, but what makes the caliber class the same is that the bullets have approximately the same diameter regardless of what kind of cartridge case it was loaded into. So the .38 caliber class includes .38 Special and .357 Magnum calibers, and I determined that it was either a .38 Special or .357 Magnum, most likely, within the .38 caliber class.
MS. CAPPLEMAN: Okay. Okay.
MS. CAPPLEMAN: And what was your result when you compared the class characteristics of the two projectiles?
ELIZABETH RICHEY: The class characteristics matched up.
MS. CAPPLEMAN: So what does that mean?
ELIZABETH RICHEY: That means that they had the same number of lands and grooves. The widths of those lands and grooves were approximately the same, and the direction of twist of the rifling was the same, and the diameter of the bullet was approximately the same.
MS. CAPPLEMAN: Does that mean it's your opinion that the two projectiles in State's 167 and 168 were fired from the same weapon?
ELIZABETH RICHEY: Yes, but I did not use the class characteristics to come to that determination. I used the individual characteristics that are found within the rifling to come to that determination.
MS. CAPPLEMAN: All right. Tell us a little bit more about that.
ELIZABETH RICHEY: Individual characteristics are the striations on the side of a bullet that come from interacting with defects inside of the barrel. So when a barrel is manufactured, metal is chipped away, and that leaves defects inside the barrel. And because metal is not chipped away in the exact same way from barrel one to barrel two, even when you use the same tool to create barrel one and barrel two, there can be microscopic defects inside the barrel that will be unique to barrel one, and there will be microscopic defects that are unique to barrel two.
ELIZABETH RICHEY: So when they come out of the factory, they're already microscopically different.
ELIZABETH RICHEY: And then through use and abuse, depending on how well you care for your firearm, more defects can be added to the inside of that barrel.
ELIZABETH RICHEY: So as a bullet passes down the barrel, it is obturating, or expanding, to fill into the rifling, and the side of that bullet is interacting with those microscopic defects on the inside of the barrel. And what happens is you get scratches on the side of the bullets, and those are the scratches that are unique to that firearm. And I will examine those scratches to determine if a bullet or a set of bullets had been fired from the same firearm.
MS. CAPPLEMAN: All right. And are those scratches that are unique to the barrel of a particular firearm known as rifling characteristics?
ELIZABETH RICHEY: The rifling characteristics would be the numbers of grooves that are inside a barrel. So if you look down a barrel, you can see high points and low points, and those would be the rifling characteristics: the number of grooves you see, the direction those grooves go, either left or right, and the widths of those grooves. Those are the rifling characteristics of a firearm.
MS. CAPPLEMAN: So you, in your business, look at the class characteristics, the rifling characteristics, and then also the individual characteristics?
ELIZABETH RICHEY: Yes.
MS. CAPPLEMAN: Okay. And what was your conclusion after looking at all those factors in reference to these two projectiles?
ELIZABETH RICHEY: The two bullets had been fired from the same firearm.
MS. CAPPLEMAN: And what, if anything, can you tell us about the firearm that was used to fire these two bullets?
ELIZABETH RICHEY: When I receive bullets that don't have a gun, I can take the rifling characteristics and enter them into the general rifling characteristics database.
ELIZABETH RICHEY: At the time, it was a database that was held by the Federal Bureau of Investigation, and what I do is I would input information into the database: the caliber class, the numbers of lands and grooves, the direction of twist, and the widths of the lands and grooves.
ELIZABETH RICHEY: And the database will give me a list of potential manufacturers that may have fired these bullets.
ELIZABETH RICHEY: Now the list is long — or the list can be very long — but the database is also not totally... it's not all-inclusive. Not every single gun in the world is represented within that database, but many, many, many are.
ELIZABETH RICHEY: So it's an investigative tool that I can give to investigators that says it could have been these guns, but don't exclude others if you think that it may be another one.
MS. CAPPLEMAN: And what can you tell us in this case?
ELIZABETH RICHEY: In this case?
MS. CAPPLEMAN: Well, I guess I should ask you, is it a long list?
ELIZABETH RICHEY: It was approximately... ultimately, two pages long.
MS. CAPPLEMAN: Okay. And were they all .38 Special or .357 Magnum?
ELIZABETH RICHEY: They were both.
MS. CAPPLEMAN: All right. And are they all revolvers?
ELIZABETH RICHEY: Yes.
MS. CAPPLEMAN: No further questions.
JUDGE HANKINSON: Cross.
MR. ZANGENEH: Nothing from Mr. Garcia.
JUDGE HANKINSON: Magbanua.
MR. DECOSTE: Yes, Your Honor.
MR. DECOSTE: This wasn't the only work you did on this case, right?
ELIZABETH RICHEY: Correct. Correct.
MR. DECOSTE: Later on in 2016, around September, you did another laboratory analysis, right?
ELIZABETH RICHEY: I did.
MR. DECOSTE: And what was that for?
ELIZABETH RICHEY: There was a firearm that was found, and they were wanting to see if it was possible if it had been the firearm that fired these two bullets.
MR. DECOSTE: By "they," you're talking about Investigator Jason Newlin, right?
ELIZABETH RICHEY: Investigator Jason Newlin is who contacted me. I'm not sure who found it.
MR. DECOSTE: Somebody brought a gun to FDLE, is what you know?
ELIZABETH RICHEY: Yes.
MR. DECOSTE: Now, once that gun goes to FDLE, it then starts a process in your lab to do a full analysis, right?
ELIZABETH RICHEY: Yes.
MR. DECOSTE: Now, there was no indication that those projectiles came out of the gun that you tested in September, right?
ELIZABETH RICHEY: The bullets were not fired from the gun that I received.
MR. DECOSTE: But nonetheless, you did this full workup?
ELIZABETH RICHEY: Yes.
MR. DECOSTE: It's not on you to make a decision not to investigate something or to investigate it. You objectively investigate what's brought in, right?
ELIZABETH RICHEY: That's correct.
MR. DECOSTE: Now, I just want to go through the list — and correct me if I'm wrong if I'm giving these documents a wrong name — but when you get an item in, specifically a pistol, you end up doing an FRT report.
ELIZABETH RICHEY: The FRT is the firearms reference table, and it's a database that I can use to look up firearms if I do not know what they are. Sometimes guns come in with no markings and we have to try to determine what they are. So that is not something that I use in every single case that I work.
MR. DECOSTE: All right. But you did in this — with that pistol, you did an FRT report?
ELIZABETH RICHEY: Yes.
MR. DECOSTE: There was also a NIBIN worksheet, N-I-B-I-N?
ELIZABETH RICHEY: There was a firearms-slash-NIBIN worksheet. That's the worksheet that we use to either do a firearms function test, or as analysts we would also use that worksheet if we were working a NIBIN-only case.
MR. DECOSTE: If you could explain to the jury what NIBIN stands for.
ELIZABETH RICHEY: NIBIN is the National Integrated Ballistics Information Network.
ELIZABETH RICHEY: And what that is, is if I receive a firearm, I can test fire the firearm and enter cartridge cases into the database.
ELIZABETH RICHEY: The computer will take photos of my cartridge cases and it will bring back possible hits to see if potentially that firearm has been used in other crimes. And I can review the potential hits to come up with "yes, I think it may have been," or "no, it may not have been." If investigators submit just cartridge cases, I can also enter just images of those cartridge cases to see if they hit to other scenes as well.
MR. DECOSTE: Now, everything you just explained to the jury, you did that with the pistol that was brought to you by Jason Newlin, right?
ELIZABETH RICHEY: I did not put this firearm into the NIBIN database.
MR. DECOSTE: But you did a NIBIN worksheet?
ELIZABETH RICHEY: I did a firearms worksheet.
ELIZABETH RICHEY: It's also our NIBIN worksheet.
MR. DECOSTE: You also took some photographs of the pistol?
ELIZABETH RICHEY: Yes, I did.
MR. DECOSTE: Next, we have a cartridge worksheet.
ELIZABETH RICHEY: Yes.
MR. DECOSTE: And if you could explain to the jury what a cartridge worksheet is, and what work you did with this pistol.
ELIZABETH RICHEY: The cartridge worksheet is just the worksheet that is used to inventory any unfired units of ammunition that I get in.
MR. DECOSTE: Does that mean if it has bullets in the gun, you do a worksheet for that?
ELIZABETH RICHEY: When most people talk about bullets, they're talking about a live unit of ammunition. When I say a cartridge, I'm talking about a live unit of ammunition, because the bullet is one part of a cartridge. The bullet is the item that is actually designed to hit a target. So when I receive a cartridge, which is an unfired unit of ammunition, often referred to by many people as bullets, I at the time would inventory the cartridges in my case.
MR. DECOSTE: And you did that with this pistol?
ELIZABETH RICHEY: Yes.
MR. DECOSTE: Now, there's also a laboratory analysis electronic packing slip that you have to fill out.
ELIZABETH RICHEY: I'm not sure which piece of paperwork you're talking about on that.
MR. DECOSTE: Would it help your memory if I showed you the packing slip?
ELIZABETH RICHEY: Yes. That piece of paperwork is not something that is in my case file, and it's not something that I would routinely run. I think that is a piece of paperwork that would come from our evidence section.
MR. DECOSTE: Something that FDLE would have to produce as part of the process of evaluating a piece of evidence, right?
ELIZABETH RICHEY: Yes.
MR. DECOSTE: There's also case notes that you do. These are handwritten notes?
ELIZABETH RICHEY: Yes.
MR. DECOSTE: Almost to the end of the list. You also have a case tracking form for FDLE that you do?
ELIZABETH RICHEY: Yes.
MR. DECOSTE: You did a head stamp report for this case?
ELIZABETH RICHEY: I did.
MR. DECOSTE: If you could real briefly explain to the jury what a head stamp report is.
ELIZABETH RICHEY: If I receive a unit of ammunition and I'm not sure who made that particular brand of ammunition, or perhaps even what caliber it is, I can look up in our head stamp database to try to determine what kind of ammunition it is. It's just a tool that we can use to try to determine something that we're not sure about.
MR. DECOSTE: If I'm understanding this correctly, with each piece of evidence it's a thorough process. There's a lot of paperwork that gets done. There's a lot of time that you put into it. And it's done objectively, right?
ELIZABETH RICHEY: Correct.
MR. DECOSTE: Nothing further, Your Honor.
JUDGE HANKINSON: Redirect.
MS. CAPPLEMAN: So all the questions that you just answered about the firearm that was submitted — that firearm did not fire the two projectiles?
ELIZABETH RICHEY: That's correct.
MS. CAPPLEMAN: No further questions.
JUDGE HANKINSON: Any juror have a question of this witness? You can step down. This'll be a good place to break. Y'all had enough for one day? All right, y'all know the drill, don't discuss the case with anyone, don't let anyone discuss the case with you. Be back, ready to go, be back at 8.45 please, have a good evening.
JUDGE HANKINSON: So, how we doing time-wise, Ms. Cappleman?
MS. CAPPLEMAN: Okay, I think we're probably about a half a day behind, but we're also considering not some of the witnesses we're going to call, so we're close.
JUDGE HANKINSON: So what would be your best estimate when you'd be done with your side?
JUDGE HANKINSON: Midday Monday? End-of-day Monday? What's your...
MS. CAPPLEMAN: I guess mid-day is our best guess.
JUDGE HANKINSON: Alright. So defense ought to have any witness they need available Monday. We don't want to finish up the State's case and sit around waiting on defense witnesses.
MR. ZANGENEH: Yes, Judge. So, we'll have our witnesses here on Monday.
JUDGE HANKINSON: Right.
MR. DECOSTE: We're pretty much determined on who we're going to call. Of course it could change with who the government still calls but we'll make sure to have them here Monday ready to go.
JUDGE HANKINSON: Okay. And do you have any better sense, Mr. Zangeneh, how much you're going to have now?
MR. ZANGENEH: Yes, I would say half a day, if that. With the caveat that if I do put my client on the stand that could change things.
JUDGE HANKINSON: Magbanua?
MR. DECOSTE: Same answer, Your Honor. Maybe half a day. That could change if Ms. Magbanua takes the stand. And here's one other issue with respect to last calling.
MR. DECOSTE: So we had subpoenaed Investigator Isom, Agent Sanford, Investigator Bennett, and a few others. And in our subpoena we said either show up on September 23rd, or contact my office and leave us a means of communication with which we can get in touch with you to come.
MR. DECOSTE: Nobody showed up on the 23rd. They didn't give us the information.
MR. DECOSTE: I don't doubt that they'll show up when they're needed.
MR. DECOSTE: But I've normally gotten some assistance from the prosecution on this to communicate with those witnesses, to make sure they're here when we need them, because I have no direct communication and they didn't fully comply with the subpoena. But again, they're law enforcement, so I know they will.
MS. CAPPLEMAN: Nobody has asked me for any assistance in coordinating those witnesses, all three of which were outside the courtroom as recently as an hour ago. So I have communication with them and can accommodate that request.
JUDGE HANKINSON: Well, I think they're all set to testify sometime in the next couple of days, aren't they?
MS. CAPPLEMAN: Yes, sir.
JUDGE HANKINSON: Well, why don't you, if you would, please, just let them know they need to be available Monday morning once they finish testifying for the state.
MR. DECOSTE: The bonus is that the prosecution knows exactly who we're calling, so they can prepare accordingly.
JUDGE HANKINSON: It seems like we need to share the evidence. Again today we went through some — it's lengthier than I need to see the evidence. Let's go through the evidence, make sure we don't have to do that. That's just a waste of the jury's time. Y'all have seen all this evidence before. Ms. Cappleman, let's make sure they've seen what's marked for evidence, so we don't have to go through that big charade acting like they've never seen it before.
JUDGE HANKINSON: I want to start talking about jury instructions probably tomorrow morning. So if you haven't printed out the jury instructions, or you haven't read over them, please read over them. I want to start talking about them tomorrow. There is a legal issue. I don't know whether any of you are going to be seeking lesser included offenses under the conspiracy and solicitation charges. There are some Fourth DCA cases that say on a case like this there are no lesser includeds. If you all think you're seeking lesser includeds, you better do some research on that to show why lessers should be given. The standard table shows no lessers — Fourth DCA. And if somebody wants to cite it, I can give you a cite at least to get you started. Anybody interested in the cite on those?
MR. DECOSTE: Yes, Your Honor.
MS. CAPPLEMAN: Please.
JUDGE HANKINSON: There are a couple of them, but let me just give you one and it'll tie you into the rest of it. It'd be Castro v. State, 939 Southern 2d 306. It's a Fourth DCA case.
JUDGE HANKINSON: They cite to several other cases in the Fourth DCA on that subject. So, anything else from either side we need to resolve?
MS. CAPPLEMAN: No, Your Honor.
MR. DECOSTE: No, Your Honor.
JUDGE HANKINSON: All right. We'll see you all at 8:30.